Banning Outlaw motorcycle Gangs

Security risks come in all shapes, sizes and guises. Twenty years ago, it would have been inconceivable that an airline hijacker would carry a Gucci briefcase, wear an Armani suit and sit in row 1A. The horrific events of September 11 taught us, more than ever, that your mum was absolutely right when she told you that no matter what you might think, you simply cannot judge a book by its cover.

Domestic security risks also come in various forms. Most airports, train stations and other transport hubs are now well resourced with closed circuit television monitors, screening facilities and other security equipment designed to increase patron safety. And while law enforcement officials and on-site security coordinators continue to maintain vigilance at those more obvious targets, focus is now increasingly turning towards other less obvious security threats.

Outlaw motorcycle gangs (OMGs) have been a thorn in the side of police and law makers in Australia for many years. One of the problems in trying to pass laws to effectively ban OMGs is that, in a democracy, everyone has a right to join clubs and to associate with whomever he or she wishes as long as that association does not engage in or facilitate illegal or unlawful behaviour.

In April 2009, all state jurisdictions in Australia agreed to adopt a united approach to OMGs. State attorneys-general (the state government ministers responsible for laws and legal affairs) agreed that if, as suspected, OMGs were involved in activities constituting organised crime, a nationally coordinated response was essential to combat them. As one high ranking New South Wales policeman observed in 2006: “Just because bikies deliver teddy bears to children’s hospitals once a year doesn’t mean that they’re not criminals the other 364 days.”

The national framework aims to introduce laws similar to legislation in South Australia that targets in particular the right of OMGs to build and maintain often heavily fortified clubhouses.

In many ways, South Australia has been the pioneer of this legislation. In fact, the legislative history of these matters in South Australia is incredibly illuminating and worthy of close analysis.

In 2003, South Australia passed the Statutes Amendment (Anti-Fortification) Act 2003 which sought “to prevent the construction of outlaw motorcycle gang headquarters in South Australia and also to allow police to demolish the existing fortifications when they are excessive.”

In 2008, the then South Australian premier stated that new laws passed in May of that year under the Serious and Organised Crime (Control) Act 2008 were “the world’s toughest anti-bikie laws”. That Act included the
following provisions:

Motorcycle gang members who engage in acts of violence that threaten and intimidate the public will be guilty of serious offences and will struggle to be granted bail prior to trial.

Police are given powers to dismantle excessively fortified OMG clubrooms and other properties.

Police are given powers to prohibit members of an OMG from attending any place where their attendance could represent a danger or serious threat to the public.

A new law of criminal association replaces the old law of consorting under which telephone calls and face-to-face meetings are outlawed.

Stalking a person with the intention of intimidating a victim, witness, court official, police officer or public servant is considered a serious offence.

Violent disorder, riot, affray and stalking of public officials by members of OMGs are now offences.

Most notably, the South Australian legislation vested power in that State’s Attorney‑General to declare an organisation to be an outlaw organisation for the purpose of the Act. In order to issue that declaration, the Attorney-General must be satisfied that members of that organisation meet for the purpose of planning, facilitating, organising, supporting or engaging in serious criminal activity and that the organisation represents a risk to public safety and order.

In order for the legislation to have a framework within which the Attorney-General can act, it sets out some matters which he or she may consider. Importantly, however, in making a declaration, the Attorney-General is not required to provide any reasons for making that decision. The Attorney-General is also under no obligation to release any information provided by the police. The matters the Attorney-General may consider are:

Any information pointing to a connection between the OMG and unlawful activity

Any criminal history of members or associates of the OMG

Any information indicating that members of any interstate or overseas branches of the OMG have been involved in assisting, planning or engaging in serious criminal behaviour

Any information received from the public in respect of the OMG

Any other matter that the Attorney-General considers relevant.

On application by the South Australian Commissioner of Police, the court is required to make a control order against a person if the court is satisfied that the person is a member of a group declared by the Attorney-General to be an outlaw organisation. Once the order is made, the person is prohibited from associating with other members of that organisation.

If the person against whom the order is made fails or refuses to obey the order, the court may imprison that person for up to five years. If another person associates with a person who is subject to an order, that first person may also be subject to criminal penalty. ‘Associate with’ includes communicating by letter, telephone, facsimile, email or by other electronic means.

In late 2008, the South Australian legislation was given practical application. The Attorney-General was asked by the Commissioner of Police to declare the Finks Motorcycle Club as an outlaw organisation. In mid-2009, the Attorney-General made that declaration and in so doing, stated that the Finks are a group whose members “associate for the purpose or organising, planning, facilitating, supporting and engaging in serious criminal activity”.

In May 2009, control orders were granted against two members of the Finks. Later that year, reports began to emerge that courts were refusing to make further control orders until the Supreme Court had adjudicated on an application that had been filed in respect to the validity of the laws. Ultimately, the Supreme Court found part of the law to be invalid, so the control orders could not stand. The Supreme Court’s decision was upheld by the High Court of Australia. The High Court found that it could not validate a law that acted as a judicial rubber stamp to a decision made by a member of the government (the Attorney-General).

The South Australian government has recently reaffirmed its commitment to its anti-bikie legislative program. Although in many ways SA was the flagship for these types of laws, their experience provides some guidance of the difficulties in passing legislation of this sort.

First, no matter how well intentioned any legislation might be, if it contravenes any of the important tenets of the constitution, it may be struck down by courts of authority. In the South Australian case, the judicial integrity of that State’s courts was overridden by the declaration of the Attorney-General. The High Court found such a situation to be unconstitutional.

Secondly, any time parliament passes laws that take away the rights of people to do certain things and to exercise fundamental freedoms (the right to associate, the right to communicate, the right to meet with people of similar interests), parliament should expect a challenge to be mounted against the validity of such legislation.

Thirdly, laws must not be seen to discriminate against any specific person or group of people. Laws designed to curtail the behaviour of
a person are one thing; laws designed to
make life more difficult for that person for no other reason are something completely different.

Finally, constitutions and bills of rights are fundamental touchstones against which all laws are measured. Courts will have no hesitation in striking down laws that infringe upon the rights prescribed in constitutions and bills of rights.

There seems to be little doubt that the trials and tribulations of the South Australian experience have been watched closely by law makers in other states, and at the national level. While the issue continues to occupy the thoughts of many parliamentarians throughout Australia as they grapple with what they believe to be a real and ever-present domestic security threat, lessons continue to be learnt from the South Australian experience. It seems that the most important lesson of all (so far) has been that in their eagerness to eradicate outlaw motorcycle gangs, governments must remain conscious of always preserving the fundamental democratic principles that underpin our entire legal system. n

Whilst every effort has been taken to ensure its accuracy, the information contained in this article is intended to be used as a general guide only and should not be interpreted or taken as being specific advice, legal or otherwise. The reader should seek professional advice of a suitably qualified practitioner before relying upon any of the information contained herein. This article and the opinions contained in it represent the opinions of the author and do not necessarily represent the views or opinions of Australian Media Group Pty Ltd or any advertiser or other contributor to Security Solutions Magazine

Justin Lawrence is a partner with Henderson & Ball Solicitors, 17 Cotham Road, Kew, Victoria, and practises in the areas of Commercial Litigation, Criminal, Family and Property Law. Henderson & Ball has Law Institute of Victoria accredited specialists in the areas of Business Law, Property Law and Commercial Litigation. Justin Lawrence and Henderson & Ball can be contacted on 03 9261 8000.